Garner v. Garner
| Decision Date | 20 May 1930 |
| Docket Number | 19483. |
| Citation | 288 P. 298,143 Okla. 183,1930 OK 252 |
| Parties | GARNER v. GARNER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a court has granted a divorce to the plaintiff and awarded her the care and custody of the minor child of the parties, and provided in the decree that the defendant should have the right to have the child visit with him on Sunday of each week between 9 a. m. and 6 p. m., and is granted custody during such period, the court may thereafter, at a subsequent term if it appear to the welfare of the child, change or modify its order to the extent of granting the defendant the custody and right to have the child visit him during the last week in the months of June, July, and August of each year, and such modification will not be deemed to come within the general rule that to justify a modification of a decree awarding custody of the child of the parties in a divorce action there must be shown a change in condition of the parties.
Commissioners' Opinion, Division No. 1.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Divorce action by Loreta Garner against Roy J. Garner. Decree of divorce was subsequently modified on defendant's application in respect to custody of child, and plaintiff appeals.
Affirmed.
Lydick McPherren & Jordan, of Oklahoma City, for plaintiff in error.
Warren K. Snyder, of Oklahoma City, for defendant in error.
On January 11, 1928, Loreta Garner, the plaintiff in error, as plaintiff below, obtained a decree of divorce from Roy J Garner, in the district court of Oklahoma county, wherein the care and custody of the minor child of the parties was awarded the plaintiff, also $40 per month for the support of the child, with the right and privilege of the defendant, Roy J. Garner, to have the child visit him and have its care and custody on Saturday of each week. Shortly thereafter the plaintiff established her residence in the city of Tulsa, and on February 28, 1928, on application of defendant, the decree was modified to the extent that the day on which the defendant was permitted to have the child visit with him was changed from Saturday to Sunday.
Thereafter the defendant filed his application to modify the decree to the extent that he be awarded the care and custody of the child the last week of each month during the school vacation period in each year, and that the amount allowed plaintiff for the support of the child be reduced from $40 to $30 during such period, it being alleged in the application of defendant that his work required him to remain in Oklahoma City until 9 o'clock p. m. on Saturday, and that he was not able to pay the outlay in expense of $15 in going to visit the child, and further alleged that, should the application be granted, he would keep the child in the home of his mother in Oklahoma City, where he also resided.
A response was filed by the plaintiff wherein it was alleged that there had been no change in the condition of the parties since the decree and its modification, and that the defendant was not entitled to any relief.
At a hearing on the motion and response thereto on June 15, 1928 such date being subsequent to the term of court at which the original decree of divorce and modification thereof was entered, the plaintiff objected to the introduction of testimony on the ground that under the application filed on May 10, 1928, the court was without jurisdiction or power to modify the former decree, which objection was overruled, and the court, after hearing the testimony of counsel for the respective parties, entered its order modifying the decree "so as to give the defendant the custody of Alice Jean Garner for the last calendar week in the months of June, July and August of each year,"but made no change in the award for the support of the child, from which order and judgment the plaintiff appeals, and as grounds for reversal contends that the court was without authority to modify the decree, in the absence of a change of conditions, after the term of court in which it was granted or first modified. In support of the contention plaintiff relies upon the general rule as stated in 19 Corpus Juris, § 810, p. 350; and the holding in Stanfield v. Stanfield, 22 Okl. 574, 98 P. 334; Wood v. Wood, 92 Okl. 297, 216 P. 936, 939; and Sango v. Sango, 121 Okl. 283, 249 P. 925, 926.
An examination of the opinions in Stanfield v. Stanfield and Wood v. Wood, supra, show a much...
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